- (1.) Heard Sri Govind Saran, learned counsel for the appellant and Sri O.P. Singh, learned Senior Advocate, assisted by Ms. Shambhavi Nandan, learned counsel for the respondent. These thirteen First Appeal From Order arise from the common judgment dated 24th January, 2001 of the Railway Claims Tribunal, Gorakhpur Bench by which thirteen Claim Petitions have been decided by the Tribunal awarding the compensation aggregating to Rs. 6,31,512/-. Since in each claim petition, the compensation awarded is less than Rs. One lakhs, therefore, this Court has the jurisdiction to decide these First Appeals. Since in all the appeals, common judgment is being assailed and common question is involved, therefore, all the appeals are being decided together by a common judgment. The brief facts of the case are that the respondent was the manufacturer of the cement. One M/s. Prayag Sales Corporation, Allahabad was its consignment agent. Seven consignments of cement have been sent on 4th January, 1995 from Dehri Aan Sone to Varanasi and six consignments of cement have been sent on 31st May, 1996 from Sone Nagar to Varanasi. For each consignment, separate Railway receipt has been issued in the name of self which has been endorsed in favour of Dinesh Gupta of M/s. Prayag Sales Corporation. It appears that the goods were sent by way of stock transfer for sale on consignment basis without any consideration. When the goods have been unloaded at the mineral open siding on 7th January, 1995, rain started causing damage to the cement. Similarly, when the other consignment reached on 3rd June, 1996, due to rains, some of the bags filled with cement have been damaged. The claim petitions were filed by the respondent on the ground that proper protection has not been taken by the railway for stacking the goods, which caused damage to the goods. The railway contested the claim petitions mainly on the ground that the months of January and June were not rainy season and the rains were not expected. In an affidavit, filed by one Sri J.N. Sinha, working as the CMI, Northern Railway, it was stated that the consignee was in hurry in unloading the goods and instead of direct transferring the goods into Truck, after unloading from wagons, the goods have been stacked at the siding, which resulted into the damage. It was further stated that staff of the railway has provided Tarpaulin etc. to protect the cement bags when the rain started, therefore, adequate protection has been taken by the railways. However, the tribunal has not accepted the plea of the railways. The Tribunal has not believed the averment made in the affidavit filed by Sri J.N. Sinha, CM, on the ground that he was not posted at the time when the goods have been damages. There is no affidavit of the staff working at the time of unloading of the consignment, therefore, averments made in the affidavit have been disbelieved. On the basis of the materials on record, the Tribunal held that if adequate protection has not been taken by the railways and if the same would have been taken, no damage would have been caused to the consignment.
(2.) Learned counsel for the appellant submitted that the Tribunal has erred in rejecting the averments made in the affidavit filed by Sri J.N. Sinha. The rains were unexpected on both the occasions, however, adequate protection has been taken by the railways by providing Tarpaulin to the consignee to protect the consignment. However, the consignee was in hurry for unloading the goods. The goods should have been transported immediately through the Truck after unloading from the wagons, instead of unloading the goods at the side. He further submitted that the burden lies upon the respondent to prove the quantity of the damaged goods. Certificate issued by the Railway relating to quantity of the goods was not admissible and on the basis of said certificate, the compensation should not have been awarded by the Tribunal.
(3.) Learned counsel for the respondent relied upon the judgment of the Tribunal and further referred a decision of the Learned Single Judge of this Court rendered in FAFO No. (450) of 1997, The Union of India v. M/s. Jai Dayal & Sons, which has been followed in another decision of the Learned Single Judge of this Court in FAFO (Defective) No. 451 of 1997, Union of India v. M/s. Jai Dayal & Co.;